Negotiation and Indorsement of Mortgage Notes in North Carolina

August 31, 2012

Most homeowners are aware that there is a foreclosure crisis in the United States, but they may not understand precisely why there is a crisis. The crisis is caused, at least in part, by the sloppy record keeping of the banks. Mortgagors/home owners nowadays are finding that they are being brought into expedited power of sale foreclosure proceedings by someone other than the party to whom they issued the note (the bank who you did a loan with). This is a result of a complicated mortgage industry where banks and mortgage companies constantly sell and swap pools of mortgages. In some cases, the party foreclosing may not actually have adequate proof of being a holder of the note. In that situation, you may be able to fight foreclosure. To discuss this option with a Raleigh civil litigation attorney, call Maginnis Law at 919.480.8526 or send a confidential email using our contact page.

Nearly all residential mortgages include a power of sale provision that allows the holder of the note to use a relatively informal procedure to foreclose on the home. To meet the burden of showing the right to foreclose, the party must show: “(1) a valid debt exists and the foreclosing party is the holder of the debt; (2) the debtor has defaulted on the debt; (3) the instrument evidencing the debt permits foreclosure; and (4) proper notice has been provided to all entitled parties.” The prong here that can sometimes help homeowners is that the foreclosing party must show that they are the “holder” of the debt. This means that if they are someone other than the party to whom the note was issued, they must prove that it was validly negotiated down the line and that they are the sole party with a right to foreclose.

To establish “negotiation,” the foreclosing party must show the note was “indorsed.” To indorse a note, the transferor must place an authorized signature on the note or attach an “allonge.” During the mortgage crisis, many lenders would either just use a company stamp with no one in particular’s name or simply create an allonge but never physically attach it to the note. The lack of an authorized party’s name or title on the indorsement was recently held by the North Carolina Court of Appeals to be defective. This meant that the foreclosing party relying upon that indorsement could not foreclose without further evidence of authorization by a specific officer or agent of the mortgage company. A defective indorsement or nonattached allonge can be crucial to keeping your home because Court’s require strict adherence to the rules required to show that one is a holder.

If you are a mortgagor and are being foreclosed upon, contact the civil lawyers of Maginnis Law. We may be able to assist you in preventing foreclosure and there may also be other remedies available to you. For instance, we have recently filed unfair debt collection violation claims against a lender in a case where the allonge was never attached to the note. Defending the foreclosure actions and filing your own claims may assist you in working out an agreeable settlement with the current transferee of the note.

To speak with the Raleigh civil attorneys of Maginnis Law, contact the firm at 919.480.8526 or 919.526.0450. We regularly assist clients in Raleigh, Durham, Cary, Chapel Hill, Apex, Fayetteville, Greensboro, and the surrounding areas. Send the details of your case through our online submission page.

 

Construction Site Accidents and the Completed and Accepted Doctrine

August 20, 2012

Most responsible contractors work hard to make construction sites safe, but there are also those contractors that are more worried about the bottom line than safety. The negligence of these few subcontractors can leave employees and passersby at risk for serious injury. North Carolina continues to follow the “completed and accepted work doctrine” that, for whatever reason, helps protect these negligent subcontractors.

The completed and accepted work doctrine provides “that an independent contractor is not liable for injuries to third parties occurring after the contractor has completed the work and it has been accepted by the owner.” While the doctrine is not frequently used, it was cited in the recent case Lamb v. D.S. Duggins Welding, Inc. There, the North Carolina Court of Appeals was presented with a situation where a subcontractor had performed work, that work was subsequently altered by the general contractor, and an employee of the general contractor was injured. The Court found that the subcontractor was not liable both because the worked had been altered and because it had been completed and accepted.

Interestingly, Lamb appears to be the first North Carolina case where the completed and accepted doctrine was applied to bar a personal injury claim by the employee of a general contractor against a subcontractor. Historically, the doctrine had been applied in cases involving third parties such as passersby.

While the completed and accepted doctrine is strong protection for subcontractors, it does not completely bar a personal injury claim in many situations. If you have been injured in a construction accident, whether as an employee or third-party, you should consult with a knowledgeable Raleigh personal injury attorney. A thorough investigation will often disclose multiple parties that may be responsible for your injuries.

The Raleigh civil law firm of Maginnis Law has active personal injury and construction practices. Attorney Edward Maginnis represents a wide array of subcontractors and general contractors, while attorney Shawn Howard handles personal injury cases throughout the Raleigh-Durham area. To speak with a Maginnis Law civil litigation attorney regarding the completed and accepted work doctrine, call Ed at 919.526.0450 or Shawn at 919.480.8526. If you would like to send a confidential email inquiry, use our contact page. The firm regularly represents clients from Raleigh, Durham, Cary, Apex, Chapel Hill, Holly Springs, Garner, the surrounding Triangle area, and Fayetteville.

North Carolina Retaliatory Employment Discrimination Act (REDA) and Workers’ Compensation Claims

August 14, 2012

The North Carolina Retaliatory Employment Discrimination Act (“REDA”) prohibits an employer discriminating or retaliating against an employee because he or she files or threatens a workers’ compensation claim. While there are procedural steps that must be strictly adhered to, if the employee is able to prove his or her case before a jury, the damages available will include lost wages and other economic damages. If the employer willfully violated the statute, the employee’s damages may be trebled. If you were an employee, and believe you were fired because you filed a workers’ compensation claim with the North Carolina Industrial Commission, contact the Raleigh employment law attorneys of Maginnis Law at 919.480.8526.

Before initiating a civil lawsuit, an employee alleging that he or she was fired due to filing a workers’ compensation claim must file a REDA complaint with the North Carolina Employment Discrimination Bureau. The complaint needs to be filed within 180 days of the retaliatory action. The EDB will then usually issue a “right-to-sue” letter to the employee. Once this letter has been issued, the employee has only 90 days to file a civil suit.

If the employee does file suit under REDA, there are a number of different forms of relief available, including:

(1) Financial compensation for economic damages such as lost wages and benefits;

(2) Reinstatement to the same or a similar position; and

(3) An injunction stopping the employer from engaging in the discrimination.

If you are interested in pursuing a claim under the North Carolina Retaliatory Employment Discrimination Act, the Raleigh lawyers of Maginnis Law offer free consultations. We can handle these types of cases under a number of fee arrangements, depending upon the exact facts and circumstances and your desired outcome. We regularly represent clients in Raleigh, Durham, Chapel Hill, Cary, Garner, Apex, Wake Forest, and the surrounding Wake-Durham County area.

To speak with a Raleigh employment law attorney regarding your North Carolina REDA claim, contact Maginnis Law at 919.480.8526. You may also send a confidential email inquiry via our contact page.

Underinsured Motorist Coverage and Insurance Company’s Subrogation Rights | Wood v. Nunnery

August 9, 2012

Standard North Carolina automobile insurance policies contain a number of different types of coverage. One of the more important is underinsured motorist coverage (UIM). The North Carolina Court of Appeals recently decided an important case regarding this type of coverage and decided that a defendant is not entitled to a credit against a judgment for amounts paid by the UIM insurer to the victim.

Underinsured motorist coverage acts as a protection to an insured that has been severely injured by a driver that has a low amount of liability insurance. In North Carolina, the minimum limit of liability insurance that every driver must own is only $30,000.00 for a single victim ($60,000.00 if there are multiple). Consequently, if someone sustains $100,000.00 of personal injury damages in an automobile accident caused by a driver with minimum limits, he or she would be left attempting to collect the additional $70,000.00 of damages from the at-fault driver personally. In most scenarios, this would be impossible. Most folks just don’t have that kind of money in a bank account, and North Carolina’s judgment collection statutes strongly protect debtors. Fortunately, this is where underinsured motorist coverage steps in. If you owned an automobile policy with $100,000.00 of UIM coverage, the other $70,000.00 of damages would be paid by your insurer directly. It is a contractual right that you are entitled to because you likely pay a few extra dollars a month. The coverage is well worth the price.

The case involving UIM coverage recently decided by the Court of Appeals is Wood v. Nunnery. In Nunnery, the plaintiff won a trial verdict of $300,000.00 for bodily injuries. Unfortunately, the defendant’s State Farm policy only provided $30,000.00 of liability coverage. Due to certain workers’ compensation issues (plaintiff was driving a company vehicle), plaintiff was able to recover $202,627.58 from a UIM policy on the vehicle he was driving.

The issue before the Court of Appeals was whether the Defendant was entitled to a credit against the $300,000.00 judgment in the amount of the UIM coverage paid. The Court decided he was not. What this meant was that the plaintiff could theoretically then pursue the defendant individually for the remaining $270,000.00 on the judgment. Unfortunately, it’s not quite that simple. In most situations, the UIM insurer is contractually entitled to subrogate against the Plaintiff’s claim.

As an example of how subrogation works, imagine that you go to trial and win a judgment against a negligent driver for $400,000.00. His insurance company pays their liability limits of $100,000.00. You recover $200,000.00 of UIM money from your insurer. The defendant would still owe $300,000.00. The UIM insurer is, however, subrogated to the first $200,000.00 recovered from the defendant. This means that if $230,000.00 is ultimately recovered from the defendant, the UIM insurer gets $200,000.00 and you recover $30,000.00. You would have ultimately received $330,000.00 on a $400,000.00 judgment.

As should be clear, the world of underinsured motorist coverage can be quite complex. The Raleigh automobile accident attorneys of Maginnis Law are available to assist you and walk you through the process. We offer free consultations and handle all personal injury matters on a contingency basis. This means you do not pay any attorneys’ fees unless and until we make a recovery on your behalf.

To speak with a Raleigh automobile accident lawyer, call Maginnis Law at 919.480.8526 or send a confidential email inquiry via our contact page. Our firm regularly represents residents of the Wake-Durham County area, including: Raleigh, Durham, Chapel Hill, Apex, Cary, Garner, and Wake Forest.

Dog Bites and the Raleigh City Code | Wake County Animal Attack Attorney

August 8, 2012

North Carolina has a high standard for establishing that the owner of a dog is responsible for injuries caused by the animal. A plaintiff must show “(1) that the animal was dangerous, vicious, mischievous, or ferocious, or one termed in law as possessing a vicious propensity; and (2) that the owner or keeper knew or should have known of the animal’s vicious propensity, character, and habits.” This knowledge can be as a result of the prior behavior of the dog or as a result of its breed, such as a pit bull. Local ordinances can also be used to assist in establishing that the owner negligently. The Raleigh City Code has particularly strong language worth referencing if you have been bitten within Raleigh city limits. If you would like to discuss your claim, and the applicable Raleigh City Code provisions, you may contact the Raleigh dog bite attorneys of Maginnis Law. Our lawyers can assist you in recovering fair compensation and can be reached at 919.480.8526.

Generally, the Raleigh City Code provides that dog owners have a legal duty not to permit or negligently allow their animals to run at large. If they have done so, and their dog subsequently injures someone, the City Code can be used to argue that they breached that legal duty. The breach of a legal duty is an element that must be established in any negligence claim. Using the City Code in this fashion is particularly important if you do not know whether the dog exhibited any previous vicious behavior and it is not a pit bull terrier or other breed known to have vicious propensities.

The City Code also provides that “[i]t shall be unlawful to own, keep, or harbor a public nuisance animal within the city.” A “public nuisance animal” includes, but is not limited to, any animal or group of animals which is repeatedly found at large, is vicious, or by virtue of its type is offensive or dangerous to the public health, safety, or welfare. It is debatable whether the Code, thus stated, would declare that the keeping of any breed of vicious dog, such as a pit bull terrier, is unlawful, but it is certainly worth arguing in any negligence litigation.

There are a number of additional laws pertaining to tethering of animals and other aspects of dog ownership which can potentially be utilized in litigation. For instance, in a recent case our firm alleged that by violating City Code provisions relating to providing adequate food and water, the defendant rendered its otherwise vicious dog even more so. If you have a claim against a dog owner arising out of a Raleigh dog bite, it is certainly worth reviewing Division 2, Part 12, Chapter 3 of the City Code.

The law firm of Maginnis Law assists people with a variety of personal injury claims, including those related to dog attacks. We offer our assistance on a contingency basis, that is, we do not require any attorneys’ fees unless and until we make a financial recovery on your behalf. All consultations are offered free of charge. We handle cases in the courts of Wake, Durham, Orange, Alamance, Johnston and the surrounding counties.

To speak with a Raleigh dog bite lawyer, call a Maginnis Law attorney at 919.480.8526 or send a confidential email inquiry via our contact page. Our firm regularly assists clients in the greater Triangle area, including Raleigh, Durham, Cary, Apex, Garner, Morrisville, Wake Forest, Clayton, and Holly Springs.

 

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